chapter 1

Question 1

What is constitutional law?

Answer 1

Is the study of the mechanisms that make up a state.

It is also the study of how these mechanisms should function, how they are created, how they can be terminated & the relationship between the government organs, the state & its people

Question 2

What is CL founded on?

Answer 2

It is founded on the Const of any state(written/unwritten)

Question 3

Is CL the cornerstone of any legal system?

Answer 3

Yes, yes it is

Question 4

What is CL

Answer 4

It is the collection of laws/legal rules that govern a certain state, according to which the community of that state is agreed to be governed, in terms of politics & civil interests

Question 5

What is a constitution?

Answer 5

Board meaning- it is an assemblage of laws, institutions and customs that were derived from fixed principles, and directed @ the public good & according to which that community has agreed to be governed
This refers to the entire legal scheme, the Const, other laws, regional & provincial laws & other forms of interpretation

Narrow meaning- it is a foundational legal doc for a particular legal system & legal development
The narrow meaning only refers to formal Constitutional text & what’s is written in it

Question 6

Is our Constitution part of our country’s unique history?

Answer 6

Yes, the Preamble of the Const states that our Const forms a bridge between the past & future

Bridge: is a mechanism for society to reach a better destination

Question 7

Is CL only a legal documents?

Answer 7

No, it also incorporates politics, philosophy, history of our legal system & judicial functions

Question 8

Is our Constitution an act?

Answer 8

No, because our Const has a higher & more Supreme status than an act, also the Const was adopted by the C A & not Parliament

Question 9

Add Mandela’s def of a const

Question 10

What is a constitutional theory?

Answer 10

A CT

1. An academic discipline that focuses on the meaning & underpinnings of a Const
2. An effort to justify a set of prescriptions about how certain controversial constitutional issues should be dealt w
3. Seeks to justify these views by drawing on existing legal provisions

Question 11

Are CT stated/confirmed by the Const?

Answer 11

No, because they are not clearly defined or stated.

Question 12

What do CT include?

Answer 12

Language, history, ethics, power of division etc

Question 13

What does CT say about the Const

Answer 13

According to CT, a const enjoys the high status of legal supremacy because the people of the state governs treat it that way, not because it has declared itself to be that way

Question 14

How is a CT paradoxical in nature?

Answer 14

It is prescriptive= it seeks to address controversial issues
But
It is descriptive= its decisions are based on existing law
Explain via the death penalty or prostitution

Question 15

What is a good CT

Answer 15

Promotes certain criteria & principles on which people strongly agree, eg RoL, democracy & fundamental rights
It seeks to answer controversial issues not only by reading the Const but also by incorporating all relevant factors about the development of a certain const dispensation

Question 16

Are CT only philosophical?

Answer 16

No, they also relate to solutions of constitutional issues

Question 17

What are the two approaches to CL?

Answer 17

Descriptive approach:
CL is viewed as being purely a compilation of principles & rules
It is a mere codification of information
It doesn’t provide a foundation for critical evaluation

Value orientated/normative approach:
CL is critically studied & evaluated against higher values which have been predetermined.
These values are based on the western tradition of freedom-inclination 
These 5 values are
-Freedom
-Dignity
-Human Dignity
-Basic Justice
-Democracy

Question 18

Name & Discuss the core values of our Const

Answer 18

1. Freedom
2. Human dignity
3. Equality

The Const states that the gov is also bound by these values, therefore gov is not above the law.

These values create tension between the gov & the people
How? These values prevent the excessive power of gov as gov is bound by law

Question 19

Which approach to CL do we use in SA

Answer 19

Value orientated/normative approach.
Sections 1&2 of the Const incorporates the values of human dignity, freedom & equality, which means that they are entrenched into our law.

The case of EFF v Speaker, National Assembly, the CC also recognised this approach in our democracy

Question 20

Discuss CL & reform

Answer 20

• We use a value-oriented/normative approach to CL. Our CL provides the primary basis of legal values that makes up the foundation of our legal system.
• CL plays an active & direct role in the process of reform in our society as CL is a transformative tool for the constant change in our society.
• This means that our law should be flexible to adapt to the constant changes in society.
• As a result, section 74 of Const provides for legislation to be amended to keep up w the constant legal & social changes in our country.

The BoR protects the basic rights & values of people and it ensures that they are treated fairly in an ever-changing state.

Question 21

What is a legitimate legal system?

Answer 21

It is a legal system that is accepted by all people of the state

Question 22

How is the acceptance of a legal system enhanced?

Answer 22

If the said legal system is based on the basic will of the people
Consti is regarded as the basic will of the people

Question 23

What is legitimacy based on?

Answer 23

It is based on the people’s sense of justic

Question 24

How will a constitutional system be successful?

Answer 24

If it is legitimate in the minds of the ordinary people of the state

Question 25

How is a legitimate constitutional system achieved?

Answer 25

It is achieved if the basic fundamental rights & freedoms are protected in the country’s const system. Aka of the BoR form part of the country’s constitution

Legitimacy must ensure the const system’s durability & stability